Samsung v. Apple – The Tablet Wars

In the wake of Steve Jobs’ death, Apple investors and fans could use a little good news.  Well, they recently received some, in the form of two rulings against Samsung. On October 18, The Sydney Morning Herald reported that a federal court in Australia had granted Apple an injunction against Samsung, preventing Samsung from selling its tablet device “Galaxy Tab 10.1” in Australia.  Apple alleged that Samsung infringed on “two of its patents relating to touch screens and the gestures that control them.”

As the article points out, this suit says a lot about the two companies, especially about Apple’s perception of the Samsung device as a true competitor to its iPad.  It also puts Samsung in a difficult position with the holiday shopping season — a season that retailers would like us all to believe starts on Labor Day this year.  For its part, Samsung’s statement in the aftermath of the ruling makes reference to the fact that it has filed a cross claim against Apple, alleging a violation of Samsung’s wireless technology patents.

Here in the United States, Samsung is also running into IP trouble with its Galaxy tab.  As reported by Reuters, after the ruling in Australia came out, “Apple then filed a request in July to bar some Samsung products from U.S. sale, including the Galaxy S 4G smartphone and the Galaxy Tab 10.1 tablet.”  A U.S. District Court judge ruled that the Galaxy infringes on Apple’s patents but, interestingly, also stated that Apple is having troubles establishing the validity of those patents.

We would have loved to be at this hearing.  Reuters’ article gives this little tidbit about that proceeding, which was undoubtedly not good news for Samsung’s attorney:

At one point during the hearing, she held one black glass tablet in each hand above her head, and asked Sullivan [Samsung’s lawyer] if she could identify which company produced which.

“Not at this distance your honor,” said Sullivan, who stood at a podium roughly ten feet away.

“Can any of Samsung’s lawyers tell me which one is Samsung and which one is Apple?” Koh asked.  A moment later, one of the lawyers supplied the right answer.

Ouch.  Not a good few days for Samsung.

New Hero Armed with 24-Year Old Drawing Emerges In Fight Against Apple

During the last few years, Apple has been no stranger to patent litigation over the design of its smartphones and tablets. In fact, to many of us, it seems as if the smartphone patent wars may extend into an era where no one has ever heard of an iPhone. While Apple’s feud with Samsung garners all the media attention, we here at Abnormal Use are here to tell you that a new opponent has entered the arena.

That opponent is Florida resident, Thomas S. Ross. Or, as we like to refer to him as “David” (or “Jon Snow” or “Frodo” or any other hero facing seemingly insurmountable odds). If you have never heard of Ross, you will.  According to reports, Ross filed suit against Apple in the U.S. District Court for the Southern District of Florida alleging that the iPhone, iPad, and iPod are a rip off of his idea.  That idea being Ross’ 1992 hand-drawn “Electronic Reading Device” (depicted below).


Ross alleges that he was the “first to file a device so designed and aggregated” nearly 15 years before the introduction of the iPhone. The gadget, imagined by Ross in 1992, possessed the capability for mixed media-browsing and communications and featured a touch-screen display, a disk drive, a modem and solar panels to power up the device.  s a result of Apple’s alleged patent thievery, Ross allegedly has experienced “great and irreparable injury that cannot fully be compensated or measured in money.” He will, however, settle for $10 billion in damages plus 1.5 percent of upcoming iPhone sales.

To be fair to Ross, he did, in fact, apply for a utility patent with the U.S. Patent and Trademark Office for the drawings of his gadget back in November 1992. However, the application was declared abandoned in April 1995, for failure to pay application fees. Ross also submitted a copyright application with the U.S. Copyright Office in 2014. While we have serious doubts Ross will ever see anything close to those financial demands contained in his lawsuit, we hope this goes well for him. We still have a picture of a flying car we drew after the release of Back to the Future II in 1989 that we would love to cash-in on in the future.

New Year, New Apple Lawsuit

With the new year comes yet another Apple lawsuit. This one has nothing to do with patents, Samsung, reception issues, or any of the other plethora of things Apple has litigated in the past. This suit concerns the functionality of the iOS 9 software – not on those new iPhone 6 or 6s’s, but on the ancient (by technology standards) iPhone 4s. According to a report from Tech Times, Plaintiff Chaim Lerman filed a class action suit in New York, alleging that the iOS 9 software upgrade puts a damper on the iPhone 4s experience. Specifically, the suit alleges:

The update significantly slowed down their iPhones and interfered with the normal usage of the device, leaving Plaintiff with a difficult choice: use a slow and buggy device that disrupts everyday life or spend hundreds of dollars to buy a new phone.  . . . Apple explicitly represented to the public that iOS 9 is compatible with and supports the iPhone 4s. And Apple failed to warn iPhone 4s owners that the update may or will interfere with the device’s performance.

Moreover, the plaintiffs allege that Apple is “aware and has been aware” that the iPhone 4s is negatively affected by the software update. The disgruntled iPhone 4s users seek $5 million in damages.

We here at Abnormal Use are on the fence about this lawsuit. On the one hand, we can sympathize with the plaintiffs’ fateful plight. We, too, hate when we have a device which works to our liking and a company pushes a software update that seems to adversely affect its performance. It is even worse when the update is forced and irrevocable. Like these plaintiffs, we have spoken ill about more than one device (this isn’t limited to an Apple or phone problem) as a result.

While we can sympathize with the plaintiffs on the performance issue, the lawsuit violates the pig rule. Rather than stop at a point which can gather support, the suit goes on to argue that because of the iOS ecosystem, users are far more likely to buy a new iPhone than switch to an Android phone so they don’t have to reinvest in nontransferable content such as apps. In other words, Apple has knowingly slowed down their phones, forcing them to buy new ones while making it difficult to switch to the competition. So, Apple should be found liable by not making it easier to throw out their product and jump onto the Android bandwagon? We are thinking that argument is just not going to fly.

The real issue here is that the plaintiffs are a class of iPhone 4s users. Apple released the 4s way, way back in October 2011. In terms of technology in the smartphone industry, it might as well have been released in 1911. As we stated back in 2013 regarding another Apple lawsuit:

Apple releases new iPhone models every 6 months, making you feel that your barely used phone is outdated. Apple doesn’t need to tamper with your phone to get you to buy a new one. They already use enough trickery in the marketplace.

At a certain point, it has to be time for an upgrade, right?

Tech Companies To Litigate Unpaid Royalties

Two kings of the tech world will reportedly duke it out over allegedly unpaid royalties.  In the suit, filed in federal court in New York, Microsoft alleges that it entered into a patent-sharing agreement in 2011 by which Samsung was to pay Microsoft a royalty for every Android phone it sells.  This was purportedly part of an effort to “work together to develop and market Windows Phone, Microsoft’s mobile software.” Microsoft alleges that Samsung failed to make a royalty payment on time and refused to pay interest on the late payment.  The original “heavily redacted complaint” alleges that Samsung has attempted to use Microsoft’s acquisition of Nokia’s phone business as an excuse for not complying with the patent-sharing agreement. Microsoft has since filed an amended complaint, and Samsung has responded with a motion to compel arbitration. The case is Microsoft Corp. v. Samsung Electronics Co., 14-cv-06039, (D.N.Y. 2014).

Austin Powers and the $1 billion Apple Verdict

When I saw the above referenced headline on CNN’s Tech website, I had two, nearly simultaneous, reactions.  First, I had to re-read the headline.  A jury in Caifornia just awarded Apple a BILLION dollars?  With a “b”?  Yes, kids, that’s “billion.”  With a “b.”  My next, less professional, reaction was to cite a string of my favorite quotes from the movie Austin Powers.  Oh, that Dr. Evil! (We’ll wait for you here while you go watch the movie clip for yourself.).

We have been tracking the Apple-Samsung worldwide feud for months now; last November, we blogged about Apple’s victory in Australia in the so-called “tablet wars” – a federal court in Australia granted Apple an injunction against Samsung, preventing Samsung from selling its tablet device “Galaxy Tab 10.1″ in Australia.  Apple alleged that Samsung infringed on “two of its patents relating to touch screens and the gestures that control them.”  Samsung faced similar troubles here in the United States.

This recent verdict was awarded in California federal court over the companies’ respective smartphones – Apple’s iPhone and Samsung’s Galaxy.  The jury determined that Samsung was guilty of “willful” violations of Apple’s patents.  It started out even bigger, but was reduced by $2.5 million when some inconsistencies surfaced in the jury’s award.  Apple had put an even bigger number “up on the board,” so to speak – $2.7 billion.  I am sure that the lawyer writing that closing had to say that figure, out loud, many times to keep it from absolutely catching in his or her throat.  Could you imagine asking a jury for that amount?  With a straight face?  But, I digress.

It is not surpristing that this award represents the largest patent infringement verdict in history.  Still to be decided is the issue of injunctions, and whether Samsung will be able to continue to sell its phone in the United States.  We’ll be watching for that decision, for sure.  In the meantime, we leave you with the quote that partially inspired this post:

Number Two: Don’t you think we should ask for *more* than a million dollars? A million dollars isn’t exactly a lot of money these days. Virtucon alone makes over 9 billion dollars a year!

Dr. Evil: Really? That’s a lot of money.


Dr. Evil: Okay then, we hold the world ransom for… One… Hundred… BILLION DOLLARS!

Friday Links

After last week’s comic book case law, here’s some Star Wars jurisprudence:

  • “Darth Vader is a huge, malevolent figure dressed entirely in flowing black robes, including a black cape which reaches to the floor. His face is masked by a grotesque breath screen with sharp angles and menacing protrusions. He wears a black helmet of flared design and is armed both with a light saber and his command of The Force, a cosmic power tapped by the Jedi Knights, a vanishing breed of crusaders for good from whose ranks Darth Vader has defected. Darth Vader has significant confrontations in the movie with his former teacher, Ben (Obi-Wan) Kenobi, who is now the Jedi Knight mentor of the young and heroic Luke Skywalker, and with Luke himself; the first battle is fought with light sabers and the second with spaceships.” Ideal Toy Corp. v. Kenner Prods. Div. of General Mills Fun Group, Inc., 443 F.Supp. 291, 297-98 (D.C.N.Y. 1977) (quotations and citations omitted).

  • “Citizens’ political speech would be unacceptably regulated if they had to fear that their efforts in support of a political candidate, even for judicial office, would remove that candidate from his or her official duties if elected. The portrayal of some candidates as ‘good’ and others as ‘bad,’ even in the graphic, pointed analogy of Luke Skywalker versus Darth Vader, is merely the rough and tumble of the democratic process. Regrettably the rough and tumble includes judicial elections.” Rogers v. Bradley, 909 S.W.2d 872, 882 (Tex. 1995). (Enoch, Justice, responding to declaration of recusal) (citations omitted).
  • “You can’t have a mock Star Wars without a mock Luke Skywalker, Han Solo and Princess Leia, which in turn means a mock Mark Hamill, Harrison Ford and Carrie Fisher. You can’t have a mock Batman commercial without a mock Batman, which means someone emulating the mannerisms of Adam West or Michael Keaton.” White v. Samsung Electronics Am., Inc., 989 F.2d 1512, 1518 (9th Cir. 1993) (Kozinski, J., dissenting from the order rejecting the suggestion for rehearing en banc).
  • “One example is the nurturing of the gifted Luke Skywalker by Obi-Wan (‘Ben’) Kenobi in Star Wars, of which the Court takes judicial notice.” Twentieth Century Fox Film Corp. v. Marvel Enters., Inc., 155 F.Supp.2d 1, 41 and n.71 (S.D.N.Y. 2001) (noting also that”Star Wars is one of the most well-known and widely viewed science fiction films.”).